A Georgia sheriff violated the First Amendment when he posted signs on the lawns of registered sex offenders to warn away trick-or-treaters, a federal appeals court said in a recent ruling. A three-judge panel of the U.S. Court of Appeals for the 11th Circuit unanimously concluded that the signs amounted to unconstitutional government-compelled speech. The decision strikes a blow against irrational policies that stigmatize sex offenders without any plausible public safety payoff—in particular, panicky precautions against the special danger they allegedly pose on Halloween.
Several days before Halloween in 2018, two sheriff's deputies put up cautionary signs in the front yards of all 57 registered sex offenders in Butts County. "WARNING!" the signs said. "NO TRICK-OR-TREATING AT THIS ADDRESS!!" This "community safety message," the signs explained, was "from Butts County Sheriff Gary Long." After trespassing on private property to publicly shame the people living there, the deputies told the affected residents they were not allowed to remove the signs.
In a message on his official Facebook page, Long explained that "my office has placed signs in front of every registered sex offender's house to notify the public that it's a house to avoid." He claimed "Georgia law forbids registered sex offenders from participating in Halloween, to include decorations on their property." As Long later conceded, that was not true.
Long also claimed his signs would protect "the safety of your children." Yet he made no effort to distinguish among registrants based on the crimes they had committed or their state-assessed risk of recidivism. And he admitted that during his six years as sheriff, none of the residents he targeted had been accused of inappropriate contact with children, whether on Halloween or the 364 other days of the year.
Long was making a big show of responding to a mythical menace. Despite widespread warnings about sex offenders luring children with candy on Halloween, a 2009 study of 67,000 sexual crimes against minors found "no increased rate on or just before" the holiday. The authors of that study, which was reported in the journal Sexual Abuse, noted that "states, municipalities, and parole departments " nevertheless "have adopted policies banning known sex offenders from Halloween activities, based on the worry that there is unusual risk on these days."
Long's stunt was not just irrational, three of the men he targeted argued in a federal lawsuit; it was unconstitutional. The Supreme Court has long recognized that the First Amendment generally prohibits the government from forcing people to promote messages with which they disagree.
In the 1977 case Wooley v. Maynard, for example, the Court held that New Hampshire could not punish two Jehovah's Witnesses for covering up the state motto, "Live Free or Die," on their license plate. New Hampshire, the justices observed, "in effect requires that appellees use their private property as a 'mobile billboard' for the State's ideological message or suffer a penalty." The Court concluded that the state could not "constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public."
In their lawsuit against Long, Butts County residents Corey McClendon, Reginald Holden, and Christopher Reed argued that his warning signs likewise qualified as unconstitutionally compelled speech. U.S. District Judge Marc Treadwell, who issued a preliminary injunction against Long in October 2019, initially seemed inclined to agree. But he subsequently dismissed the lawsuit after concluding that Long's signs did not implicate the First Amendment after all.
As Treadwell saw it, the signs did not qualify as compelled speech because passers-by would ascribe the message to Long rather than the residents. Hence McClendon, Holden, and Reed were not forced to "endorse" that message. Treadwell also noted that the plaintiffs were free to contradict Long's warning by posting additional, corrective signs.
In a January 19 ruling, the 11th Circuit concluded that Treadwell's analysis was mistaken. Although he "determined that a compelled government speech
claim requires a finding that a reasonable third party would view the speech as 'endorsed' by the plaintiff," the appeals court said, "Wooley contains no such
requirement." The "primary harm" in that case, it noted, was "the required use of the plaintiff's property as a 'billboard' for government speech."
The 11th Circuit said Treadwell "also erred by determining that the plaintiffs' ability to place their own yard signs disagreeing with the warning signs could cure the original violation." If that were true, it said, "the Sheriff could place any sign identifying himself as the speaker in any county resident's yard," as long as the resident was allowed to provide a counterpoint with his own sign. Such commandeering of private property for official propaganda would be plainly inconsistent with Wooley.
Since Long's signs qualify as compelled speech, the 11th Circuit said, they have to satisfy "strict scrutiny," meaning they are "narrowly tailored" to serve a "compelling" government interest. And while Long's avowed purpose of protecting children from sexual predators counts as "compelling," the court said, his yard signs are "not narrowly tailored to achieve that goal."
Treadwell noted that McClendon, Holden, and Reed "have, by all accounts, been rehabilitated and are leading productive lives." Nor was there any evidence that the other registrants posed a threat to children.
Long "did not consider whether any of the registrants were classified by Georgia as likely to recidivate," the 11th Circuit noted, and he "even admitted that, since he took office in 2013, he had never had an issue with a registrant having unauthorized contact or reoffending with a minor on Halloween or at any other time." Long, in short, "has not provided any record evidence that the registrants in Butts County actually pose a danger to trick-or-treating children or that these signs would serve to prevent such danger."
Unfortunately, legislators typically show about as much judgment as Long when they target people convicted of sex offenses, who are hounded by myriad requirements and restrictions long after they have completed their sentences. Those policies, which include the registries themselves as well as residence restrictions and a panoply of occupational disqualifications, are likewise supposed to protect public safety. But as with Long's yard signs, there is little evidence that they work as advertised. Instead they impose punishment in the guise of regulation, undermining rehabilitation by demanding perpetual ostracism.